Cases and authorities

CORPORATIONS - Oppression - whether director unfairly excluded from affairs of company - where director absent from meetings for six months - where director attended subsequent board meetings without objection - whether consent for absence to be inferred from circumstances - whether refinancing transaction contrary to interests of company - where other arguably more favourable loan offers available - whether directors had approval of the board to enter into loan agreement - whether board meetings convened with inadequate notice or information so as to prevent effective participation - whether directors failed to provide information reasonably requested - whether directors failed to call meetings as required by constitution CORPORATIONS - Winding up on just and equitable grounds - Failure of the substratum of the company - where company limited by guarantee was formed for enumerated purposes - where directors proposed to develop land held by the company - whether redevelopment of sole asset was outside the general intention and common understanding of the members CORPORATIONS - Winding up - Oppression - company limited by guarantee - relief - whether winding up an appropriate or proportionate remedy

Costs - Crown application for costs - whether proceedings were civil proceedings - whether there should be a departure from general rule that costs follow the event

EQUITY - trusts and trustees - applications to the court for advice and authority - application for judicial advice as to whether administrator of deceased estate would be justified in further investigating validity of will - some doubt as to testator's testamentary capacity - whether appropriate for administrator to seek grant of probate in solemn form

TORTS - negligence - occupier's liability - respondent slipped on driveway giving access to rented premises - Civil Liability Act s 5B - whether risk of injury not insignificant - whether risk foreseeable - whether reasonable person in occupiers' position would have taken preventative measures such as providing handrails or alternative means of access

PROCEEDS OF CRIME - automatic forfeiture of property under restraining order - lawfully obtained funds transferred through bank account opened with false identification documents - whether property ought to be excluded from forfeiture - whether property instrument of unlawful activity - nature of property interest in bank accounts WORDS AND PHRASES - "instrument of unlawful activity" - "instrument of an offence" - "proceeds of crime"

COSTS - application for indemnity costs by unsuccessful party based on offer of compromise - calculation of relative value - calculation of damages - no issue of principle

APPEAL - appeal against interlocutory decision of the Local Court - application for leave to appeal - whether Magistrate erred in declining to set aside a subpoena and Notices to Produce - no error found - application for leave to appeal refused with costs

TAXES AND DUTIES - taxation administration - reassessment of tax liability of taxpayer under s 9 of Taxation Administration Act 1996 - Chief Commissioner made reassessment after taxpayer began proceedings for review in Administrative Decisions Tribunal - whether existing proceedings in tribunal or court prevents Chief Commissioner from making a valid reassessment - ratio decidendi of St George Leagues Club Ltd v Commissioner of Land Tax [1983] 2 NSWLR 399

COSTS - assessment - costs assessor makes a preliminary ruling concerning the basis of the assessment - whether a "decision" within s 208L Legal Profession Act 1987 - whether appeal competent - whether solicitor successfully contracted out of Motor Accidents Compensation Regulation - what provisions of the Legal Profession Act need to be complied with to contract out - whether strict compliance is possible or necessary - failure to disclose estimate of counsel's fees - costs agreement not entered into at earliest opportunity after solicitor retained - failure to disclose estimate of expert's fees

CRIMINAL LAW - appeal against sentence - aggravated break and enter with intent - whether manifestly excessive

CRIMINAL LAW - sentence appeal - assault occasioning actual bodily harm - unexplained attack on patron outside nightclub - single punch - serious injuries suffered by victim - submission that sentence manifestly excessive - sentence not shown to be unreasonable or plainly unjust - leave to appeal refused.

APPEAL - application for leave to appeal - r 20.26 Uniform Civil Procedure Rules - Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 - whether appeal raised a question of public importance or an injustice APPEAL - application for leave to cross-appeal - where new evidence available - whether primary judge erred in not awarding indemnity costs for the whole proceedings COSTS - indemnity costs - Calderbank offer - whether indemnity costs should be awarded in respect of leave application

SALE OF GOODS - conditions and warranties - implied conditions and warranties - cattle vaccine - whether contaminated at time of sale - whether constituted a supply of goods of unmerchantable quality SALE OF GOODS - remedies for breach of contract - measure of damages - whether primary judge erred in not making further allowances PROCEDURE - additional reasons - matters of substance - whether additional reasons can be taken into account

ASSOCIATIONS AND CLUBS - incorporated association - resolution at committee meeting regarding nominees for membership - whether primary judge erred as to resolution to approve candidates. ASSOCIATIONS AND CLUBS - incorporated association - effect of a conclusive evidence provision in the Association's Constitution.

TORTS - professional negligence - accountant's failure to advise of freeze on redemptions from investment fund and expiry of "cooling off" period - loss of opportunity to redeem investment - whether duty of care extended to developments post-dating investment - whether breach of duty - whether evidence of loss

CORPORATIONS - creditor's statutory demand - application to set aside creditor's statutory demand - originating process filed by director - director cannot commence proceedings to set aside a statutory demand - director not a proper and necessary party to proceeding to set aside a statutory demand - UCPR r 7.1(2) requires that a solicitor be appointed to act for defendant company - whether appropriate for the Court to dispense with rule CORPORATIONS - creditor's statutory demand - application to set aside creditor's statutory demand - whether genuine dispute - whether guarantee under a contract founds a claim for unliquidated damages or for a debt

PROCEDURE - joinder - application to join applicants as parties pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 - proceedings in protective jurisdiction of the Supreme Court - effect of exercise of parens patriae jurisdiction on meaning of "necessary" in r 6.24(1) - whether exists analogy with joinder pursuant to s 98(3) of Children and Young Persons (Care and Protection) Act 1998

ADMINISTRATIVE LAW - jurisdictional error - whether Administrative Decisions Tribunal of New South Wales has jurisdiction to review decision of Director-General of Family and Community Services not to grant care and control of a child to second defendants STATUTORY INTERPRETATION - s245 Children and Young Persons (Care and Protection) Act 1998 (NSW) - decision by Director-General of Family and Community Services not to grant care and control of a child to second defendants - whether decision is a decision in relation to the preparation of a permanency plan or the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children's Court

PRACTICE & PROCEDURE - application for change of venue of hearing - no question of principle

DAMAGES - assessment of damages for defective building work - no question of principle.

EXPERT WITNESSES - conclave - how many conclaves - who should attend.

CRIMINAL LAW - appeal - sentence - whether sentence manifestly excessive

APPEAL - application for leave to appeal dismissed - no issue of principle

EVIDENCE - no question of principle.

CONTEMPT - tender of CCTV footage - tender rejected - vicarious liability of State for alleged contempt by police officers.

CORPORATIONS - creditor's statutory demand - application to set aside creditor's statutory demand - whether genuine dispute that debt was due and payable

SUCCESSION - wills, probate and administration - construction and effect of testamentary dispositions - whether direction to pay debts and testamentary expenses displaces s 46C(2) of the Probate and Administration Act 1898 - meaning of "pecuniary legacy" in Part 2 of Third Schedule of the Probate and Administration Act - contrast between specific gifts and pecuniary legacies - whether condition to gift causing gift to lapse should donee institute family provision proceedings is void as being contrary to public policy

CONTEMPT - whether non-compliance with subpoena - whether subpoenas were issued by any court - costs.

PROCEDURE - defendants seeking leave to file in court amended pleadings - leave not granted - further particulars required

PROCEDURE - costs - appeal against certain costs orders including for assessment on an indemnity basis - whether discretion as to costs miscarried - no issue of principle

CORPORATIONS - creditor's statutory demand - application to set aside creditor's statutory demand - no appearance by defendant - plaintiff's affidavit sufficiently outlines a genuine dispute - statutory demand set aside

PRACTICE & PROCEDURE - notice to produce - production pursuant to notice incomplete - plaintiff seeks court order for production of documents - whether notice to produce was oppressive - where documents would amount to over 100,000 pages - where confidentiality asserted - evidence does not support claim for confidentiality - where documents sought significantly predate relevant conduct - CORPORATIONS - applicant seeking orders pursuant to Corporations Act, s 1303 - whether order for production of all company's books would be oppressive

CORPORATIONS - external administration - deed of company arrangement - administrator seeking extension of time to register security interests - where interest has remained unregistered for significant period of time - where no competing interests have been registered - whether court should exercise discretion to extend time

PRACTICE & PROCEDURE - notice of motion - Uniform Civil Procedure Rules 2005 (NSW) r 36.16 - application to set aside a judgment refusing leave to institute proceedings where vexatious proceedings order made in respect of applicant

TRUSTS - trusts and trustees - judicial advice under Trustee Act 1925 s 63 - rule in Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482 - trustee under a will holds part of the "A" and "B" class shares in a proprietary company for two beneficiaries (the son and daughter of the testator) as tenants in common - the son gives a Saunders v Vautier direction to the trustee for the distribution of his aliquot share of the capital - whether the son has an absolute, vested and indefeasible interest in the capital and income of the "A" and "B" class shares - whether any "special circumstances" displace the operation of the rule allowing the trustee not to comply with the direction.

INTERLOCUTORY INJUNCTION - futility - lack of utility

CRIMINAL LAW - sentence appeal - whether sentencing judge erred by failing to give practical effect to a finding of special circumstances in the context of the total effective sentence to be served by the applicant - whether sentencing judge erred in the manner identified in Pearce v The Queen [1998] HCA 57; 194 CLR 610

PRACTICE & PROCEDURE - notice of motion seeking enforcement of compromise under s73 Civil Procedure Act 2005 (NSW) COSTS - application for extension of time for costs assessment under s350(5) Legal Profession Act Act 2004 (NSW)

APPEAL AND NEW TRIAL - appeal - Supreme Court Act 1970, s 45(4) - no question of general principle - short form judgment. TORTS - employment accident - lifting injury - liability - risk assessment analysis required - no training in lifting techniques - employer negligent. DAMAGES - future economic loss - exaggeration of extent of disability - no error in award.

COMPANIES - Compromises and arrangements - Scheme of arrangement - Transfer scheme conferring authority on target to transfer members' shares to acquirer in exchange for shares in acquirer - Statutory majority of members voted in favour of scheme - Whether target company and its members who voted in favour of scheme "associates" - Whether relevant agreement between target and members voting in favour of scheme for purpose of controlling or influencing composition of acquirer's board or conduct of acquirer's affairs - Whether target and members voting in favour of scheme acting in concert - Whether target and members voting in favour of scheme proposing to become associated - Whether target and members voting in favour of scheme had "together become entitled" to shares in acquirer CONTRACT - Construction and interpretation - Definitions - Whether definition displaced by context WORDS AND PHRASES - "Associated" - "Acting in concert" - "Together become entitled"

PROCEDURE - application to vary orders of the Court - application in the alternative to recall part of the reasons for decision

DAMAGES - torts - negligence - personal injury - workplace accident - appellant injured by lifting heavy metal plate - whether appellant contributorily negligent - whether appellant had knowledge of risks involved in lifting plate - whether trial judge erred by placing too much weight upon prior injury - system of work - whether trial judge erred in findings with respect to economic loss - whether appellant fit for pre-injury occupation - whether trial judge erred in findings with respect to domestic assistance

PRACTICE AND PROCEDURE - legal professional privilege - where privilege asserted by owners corporation against lot owner - whether common or joint interest applies - where subpoenaed documents related to a proceeding that lot owner pursued solely for benefit of owners corporation and in which lot owner sought no relief against owners corporation - where owners corporation sought to dispute that claim by lot owner - where subpoenaed documents also related to other proceedings in which owners corporation and lot owner were adversaries

APPEAL - application for leave to appeal from two decisions - each decision involved exercise of discretion or discretionary judgment - neither arguably attended by error of kind described in House v The King (1936) 55 CLR 499 - leave to appeal refused

CORPORATIONS - ORDERS & DIRECTIONS - application for declaration that cross-claim does not stand dismissed - where court orders that proceedings will stand dismissed if cross-claimant fails to file and serve evidence by a particular date - where cross-claimant fails to file and serve evidence - where cross-claimant goes into administration - whether appointment of voluntary administrator has the effect of staying court orders - whether s440D of the Act applies to cross-claim brought by a company in administration - orders not stayed by appointment of administrator - Corporations Act 2001 (Cth) s440D CORPORATIONS - INTERPRETATION - Corporations Act 2001 (Cth) s440D - meaning of "in relation to" - meaning of "a proceeding" - meaning of "property" PRACTICE & PROCEDURE - ORDERS & DIRECTIONS - NSW Supreme Court - NSW Supreme Court Rules - application for declaration that cross-claim does not stand dismissed - where court orders that proceedings will stand dismissed if cross-claimant fails to file and serve evidence by a particular date - where cross-claimant fails to file and serve evidence - whether court can extend time for compliance with order - court may extend time for compliance unless order dismissing cross-claim precludes it - whether court should exercise discretion to extend the time for compliance - relevant principles - Uniform Civil Procedure Rules 2005 (NSW) ss 1.12; 36.16; 56

REAL PROPERTY - Torrens title - caveat against dealings - application for removal of valid caveats to permit refinancing - no agreement between parties - indisputable caveatable interest - balance of convenience - replacement security - no genuine understanding of undertaking proffered to Court - no point of general principle

PRACTICE AND PROCEDURE - application to have the Registrar's decision in relation to discovery set aside pursuant to rule 19 of part 49 of the Uniform Civil Procedure Rules 2005 (NSW)

PROCEDURE - contempt, attachment and sequestration - contempt - statements made in court that could potentially constitute contempt or perjury - statements made in the course of proceedings in protective jurisdiction subject to confidentiality orders - variation of confidentiality orders - disclosure of documents to allow Attorney-General to consider prosecution

PRACTICE & PROCEDURE - notice of motion seeking an extension of time for second plaintiff to provide security for costs dismissed by consent COSTS - whether the costs the subject of the agreement should be payable forthwith

CRIMINAL LAW - application for judge alone trial